Delhi District Court
Mahavir Singh vs Sudesh Kumari on 18 January, 2023
IN THE COURT OF MS. PURVA SAREEN,
ADDITIONAL DISTRICT JUDGE-01, SOUTH DISTRICT,
SAKET COURT, NEW DELHI
Civil Suit No.7152/16 (Old No.65/15)
DLST-01-001547-2015
Mahavir Singh
S/o Sh. Chandagi Ram,
R/o 2nd Floor 3, Hauz Khas Village,
New Delhi
..... Plaintiff
VERSUS
1. Sudesh Kumari
W/o Late Sh. Jagbir Singh
2. Paras
S/o Late Sh. Jagbir Singh
3. Upasana
D/o Late Sh. Jagbir Singh
4. Akanksha
D/o Late Sh. Jagbir Singh
All R/o Ground Floor,
3 Hauz Khas Village
New Delhi
..... Defendants
Date of institution : 02.06.2015
Date for reserving orders : 19.12.2022
Date of pronouncement of judgment : 18.01.2023
JUDGMENT
Suit for declaration, permanent and mandatory injunction and damages CS No.7152/2016 (Old No.65/15) Page 1 of 20 Mahavir Singh Vs Smt. Sudesh Kumari & Ors
1. The present suit has been filed by Mahavir Singh (hereinafter referred as plaintiff) for declaration, permanent and mandatory injunction and damages against the defendants namely (i) Smt. Sudesh Kumari (hereinafter referred as defendant no.1), (ii) Paras (hereinafter referred as defendant no.2), (iii) Upasana (hereinafter referred as defendant no.3) and (iv) Akanksha (hereinafter referred as defendant no.4).
2. The case of the plaintiff is that he is a resident as well as owner and in absolute possession of 2 nd floor of premises 3, Hauz Khas Village, New Delhi (hereinafter referred as suit property). The father of the plaintiff during his life time had divided his properties through a family settlement amongst plaintiff and two brothers of the plaintiff namely Jagveer Singh and Satyavrath which was reduced in the writing. According to the family settlement, property 1A/1 was divided in a manner such that ground floor of the property was given to plaintiff, first floor to Jagveer Singh and second floor to Satyavrath.
3. Front portion of property no.2 was divided in a manner such as ground floor to Satsyavrath, first floor to Mahavir Singh and second floor to Jagveer Singh. The back portion of the property no.3 was not compeltely constructed and the same had to be constructed first by all three brothers and then it was to be given in a way that ground floor would come to Jagveer, first floor to Satyavrath and second floor to Mahavir Singh with roof rights.
CS No.7152/2016 (Old No.65/15) Page 2 of 20Mahavir Singh Vs Smt. Sudesh Kumari & Ors After the construction of the back portion, every brother got one different floor in each property. Each of the brother had got roof rights in one of the properties and every brother had constructed the third and forth floor in their respective properties.
4. The back portion of property no.3 whose ground floor had come in share of Jagveer Singh was duly constructed and after the death of Jagveer Singh all the legal heirs of late Jagveer Singh became the owner of the ground floor of the suit property. All the defendants are the legal heirs of the deceased Jagveer Singh. Defendant no.1 being the wife, defendant no.2 the son and defendant no.3 and 4 the daughters respectively of the late Jagveer Singh. The plaintiff is in possession of the third floor of the suit property and the present suit for declaration, mandatory and permanent injunction has been filed to injunct the defendants from carrying on construction in the common area and also for demolishing the construction already carried out and restraining them from having exclusive right in the common area which is in turn effecting the easementary rights of the plaintiff.
5. It is also submitted by the plaintiff that when the back portion of the property was constructed, a space was left for entry towards the lift area. Four concrete pillars were made which as per the plaintiff are still existing from the ground floor to the forth floor for installation of the lift. An open area was also left as a shaft for installation and fittings for water connection, gas and sewer pipes etc. CS No.7152/2016 (Old No.65/15) Page 3 of 20 Mahavir Singh Vs Smt. Sudesh Kumari & Ors
6. It is submitted that area marked A, B and C in the site plan is the common area over which no party can claim exclusive right. Hence, the plaintiff alongwith other occupants has equal right for usage for common entrances, passages, staircase, shaft, lobby, lift area and all other common service amenities, easements etc provided in the building.
7. It is further submitted that the first floor roof area which was left open for installation of lift was covered by defendants and the dug up portion was filled up by the defendants and now there is no possibility for installation of the lift.
8. It is submitted that the defendants who are occupying the ground floor are deliberately creating nuisance and are putting their belongings in the common area adjacent to the lobby.
9. Plaintiff is an old man and remains at the house most of the time. In the month of March 2015, the defendant mounted a wooden partition between the lobby and the common area, thereby blocking the space and also blocked the shaft area by putting a wall and hence depriving the plaintiff to the access to the common usage area of the lobby as well as the shaft area. They also put an iron and a glass gate at the starting point of the stairs and rented out the said portion where a boutique is running which is blocking the ingress towards the shaft area.
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10. The plaintiff even made a complaint before PS SJ Enclave with respect to the said construction but no action was taken by the police. Due to this act of the defendants, the plaintiff is suffering loss of monthly rent also with respect to the second, third and forth floor which cannot be rented out due to illegal and unlawful acts of the defendants and as the defendants are still continuing with the said illegal acts, the plaintiff is suffering continuous damage to the tune of Rs.4 lacs per month. The plaintiff has prayed for declaration, permanent injunction, mandatory injunction and recovery of damages. Hence, the present suit.
11. Written statement was filed on behalf of defendants wherein the defendants denied having created any obstruction and hindrance in the usage of common passage in the suit property and stated that it was the labourers of the plaintiff who used the common passage for cutting marble stones of the plaintiff and the iron gate had been installed for the purpose of security of the property. The defendants further denied that any lift area ever existed in the suit property and hence there was no question of blocking the same. They further stated that the shaft area could be easily accessed from the staircase and the wall constructed by the defendants was not an encroachment as the area where the same had been constructed was in exclusive possession of the defendants.
12. The defendants denied any understanding or agreement for installation of the lift and further stated that there was no permission or approval from the MCD or concerned department CS No.7152/2016 (Old No.65/15) Page 5 of 20 Mahavir Singh Vs Smt. Sudesh Kumari & Ors for installation of lift in the suit premises. The defendant further stated that he had not let out any portion on rent in the suit property. The defendants also denied all the remaining averments of plaintiff as mentioned in the plaint.
13. Plaintiff filed replication to the written statement of defendants controverting the stand taken by them in their written statement and reiterated the facts of his plaint.
14. Meanwhile, Local Commissioner was appointed by the Court on 29.09.2015 to ascertain the status of common area as per the site plan and also to ascertain what type of entry gates had been installed. The Local Commissioner submitted in his report that there was no gate to enter the lobby and lobby was a part of the common area which was in possession of both the parties. There was a wooden wall having a door which was in possession of the defendants and there was another area which was proposed area for lift but as the same was closed with the concrete roof, there was no provision to install the lift. The said area was also in possession of the defendants. The Local Commissioner further reported that the stairs were open and clear to all. However, there was a portion in the suit property which was stated to be a common area by the plaintiff and where a boutique was running and the said portion was also in possession of the defendants. As per the report of the Local Commissioner, the shaft was open from the back side and the entry was through the hall which was in possession of the defendants. There was no open area and the CS No.7152/2016 (Old No.65/15) Page 6 of 20 Mahavir Singh Vs Smt. Sudesh Kumari & Ors open area stated to be a common area had been merged in the hall which was again in possession of the defendants.
15. After completion of proceedings, matter was listed for framing of issues. From the pleadings of the parties, vide order dated 30.03.2017, following issues were framed :-
i) Whether the suit does not disclose any cause of action against the answering defendants? OPD
ii) Whether the plaintiff has suppressed material facts and has not approached the court with clean hands? OPD
iii) Whether portions marked as 'A' 'B' and 'C' in the site plan filed alongwith the suit are common area passages? OPP
iv) Whether defendants no.1 to 4 have encroached upon the common area passage marked 'A' 'B' and 'C' in the site plan filed along with the suit? OPP
v) Whether construction/renovation work was already being carried on by the plaintiff in the suit property at the time of filing the suit in portion of the plaintiff? OPD
vi) Whether defendants have made alterations in the common area passage after receipt of summons from the Hon'ble court?OPP
vii) Whether plaintiff is entitled to the relief of declaration as prayed for? OPP.
viii) Whether plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
ix) Whether plaintiff is entitled to the relief of mandatory injunction as prayed for in prayer (iii)? OPP
x) Whether there is provision of lift at point 'A' shown in suit plan CS No.7152/2016 (Old No.65/15) Page 7 of 20 Mahavir Singh Vs Smt. Sudesh Kumari & Ors filed alongwith suit and thereby plaintiff is entitled to the relief of mandatory injunction as prayed for in prayer (iv)? OPP
xii) Whether plaintiff is entitled to recover the amount as prayed for ? OPP
xii) Relief.
16. Thereafter, matter was listed for plaintiff evidence. During the plaintiff evidence, plaintiff examined himself as PW1 and tendered his affidavit in evidence as Ex.PW1/1. He relied upon the following documents :-
1) Site plan, Ex.PW1/A.
2) Family settlement dated 14.08.1996, Ex.PW1/B.
3) Six photographs, Ex.PW1/C to Ex.PW1/H.
4) Photocopy of complaint dated 07.04.2015, Mark A. PW1 was duly cross-examined and he specifically stated he was 11th pass and was a retired person. He alongwith all the defendants and Satyavrath had inherited two properties from his father. The back portion of house no.3 Village Hauz Khas, New Delhi which is the suit property measured 300 sq yards and it was divided into two portions i.e. front portion and back portion Their late father had partitioned all the property vide a family settlement and all the brothers agreed to the same. He admitted that there was no provision for lift in the front portion of the suit property and in property no.1A/1 in Village Hauz Khas. He also admitted that there was no permission or approved site plan from the MCD for installation of lift in the suit property. The documents filed by the plaintiff also included certain site plans in which area shown A CS No.7152/2016 (Old No.65/15) Page 8 of 20 Mahavir Singh Vs Smt. Sudesh Kumari & Ors and B were open spaces but there was only one open space at point B in the suit property. He admitted that area mark A had been covered by mutual consent of all the owners of the suit property. He denied that the plans were made at his instance and were forged and fabricated. The witness further denied that there was some renovation work going on at his instance in the suit property and stated that the same was being conducted by the tenants of the first floor. He denied that any work was being conducted on his floor. He admitted that he had not taken electricity and water connection on his floor and he did not feel the need for the same. He further stated that there was no water pipe line from the roof to the floors below as he was not allowed to take the water connection through the shaft. He admitted that he had not got approved any site plan with respect to the suit propert.
He admitted that all the brothers were in possession as per the family settlement.
17. Thereafter, plaintiff examined PW2 Ct Moinuddin who could not bring DD No.16B as the same had been destroyed being an old record.
PW2 was not cross-examined by the defendants.
18. Plaintiff further examined PW3 Brij Aggarwal who was the Architect Designer and had made the property design. He stated that he had visited the suit property and had found that there was provision for installing the lift and columns were erected for installation of the lift.
CS No.7152/2016 (Old No.65/15) Page 9 of 20Mahavir Singh Vs Smt. Sudesh Kumari & Ors In his cross examination he stated that he could not say if the plaintiff had got the site plan approved from the MCD or any other authority and to verify the same was not a part of his job.
19. No other witness was examined by plaintiff in support of his case and plaintiff's evidence was closed.
20. In defendant's evidence, defendants examined Ms. Upasana as DW1, who tendered her affidavit in evidence as Ex.DW1/1 and relied upon the documents as under:-
1) Power of Attorney dated 07.07.2015, Ex.DW1/1.
2) Two photographs, Ex.DW1/2 (colly).
3) Four photographs, Ex.DW1/3 (Colly).
4) Two photographs, Ex.DW1/4 (colly).
5) Three photographs, Ex.DW1/5 (colly).
6) Complaint dated 26.05.2015 alongwith postal receipts, Ex.DW1/6 (colly).
7) Four photographs, Ex.DW1/7 (Colly).
8) Three photographs, Ex.DW1/8 (colly).
9) Written statement, Ex.DW1/9.
DW1 was duly cross-examined by counsel for plaintiff. Witness stated that suit property was constructed upto the ground floor prior to her knowledge and rest of the floors were constructed in her knowledge. She stated that ground floor was constructed prior to her birth by her grandfather and she was not aware about the layout plan, map and design of the suit property. She stated that she was not residing in the suit property and the CS No.7152/2016 (Old No.65/15) Page 10 of 20 Mahavir Singh Vs Smt. Sudesh Kumari & Ors entire ground floor had been given on rent by her mother for commercial purpose. When she was shown the site plan of suit property Ex.PW1/A, she stated that it was incorrect and there was no open space at point X and no lift at point Y. She further stated that entry to point Z was from Z1 and not from Z2. She denied that point Y was made to install a lift and further denied that the hall made on the ground for lift had been covered by the defendants. She admitted that there were pillars at point 1 ,2 ,3 and 4 but denied that they had been installed for the purpose of the lift. She also denied that there had to be an entry to the lift which had to be from the lobby and from point 5. She admitted that water, sewer and water drainage pipes were running from the shaft from ground floor to top floor and admitted that point C was common for all the floors. She denied that electricity connection could not be installed as the main point of electricity was below the stair which had been covered by the defendants by making a boutique and plaintiff had no access to the same. She denied that the point A, B and C were common space and A had been left for installation of lift. She admitted that defendant no.4 was running a boutique and she was not having any document qua the same.
21. No other witness was examined by defendants in support of their case and defendant's evidence was closed.
22. Final arguments were addressed by the counsel for plaintiff and defendants and written arguments were also filed by both the parties.
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23. I have gone through the documents placed on record and perused the evidence of the parties and file carefully.
24. My Issue wise findings are as follows:-
The undersigned shall first decide the issue no.3, 4, 6, 7, 8, 9 and issue no.10.
(3) Whether portion mark as A, B and C in the site plan are common area passage ? OPP (4) Whether the defendant no. 1 to 4 had encroached upon the common area passage ? OPP (6) Whether defendants have made alterations in the common area passage after receipt of summons from the Hon'ble court? OPP (7) Whether the plaintiff is entitled to relief for declaration as prayed for ? OPP (8) Whether plaintiff is entitled to the relief of permanent injunction as prayed for? OPP (9) Whether plaintiff is entitled to relief of mandatory injunction as prayed for? OPP.
(10) Whether there is a provision of lift at point A shown in the site plan filed alongwith the suit and thereby plaintiff is entitled to the relief of mandatory injunction as prayed for in prayer iv? OPP.
The plaintiff has averred in his plaint that areas marked A, B and C were common areas and none of the occupants of the entire building had exclusive rights on those areas. It is further CS No.7152/2016 (Old No.65/15) Page 12 of 20 Mahavir Singh Vs Smt. Sudesh Kumari & Ors submitted that the area which was left for installation of the lift was covered by the defendants and the dug up portion on the ground floor for the lift was filled up and there was no more any possibility for installation of the lift now. The defendants on the other hand submitted that the site plan filed by the plaintiff is wrong and all the areas shown in the site plan do not exist at all. The defendant further submitted that no NOC was taken from the other co owners/owners of the first floor and the plaintiff had not filed any site plan approved from the MCD for installation of the lift in the suit property. During the cross examination of DW1, DW1 Ms. Upasana denied the site plan and stated that there is neither any open space at point X nor any lift at point Y. She further admitted that entry to point Z was from Z1. The witness further admitted that there were pillars at point 1, 2, 3 and 4 from ground floor to the top floor in area Y. If the entire site plan is observed, the kind of construction and positioning of area A clearly shows that there was a provision for lift in the said space. It is a matter of common sense that four pillars placed in the rectangular positioning can only serve the purpose of a lift installation which is further confirmed from the photographs placed on record by the Local Commissioner alongwith his report. The plaintiff examined the Architect of the building Brij Aggarwal as PW2 who also stated in his examination in chief that when he visited the suit property, he found that there was a provision for installing lift in the suit property and columns for lift were erected in the suit property. It has further come into evidence that there are also encroachments by way of partition in the common area at the CS No.7152/2016 (Old No.65/15) Page 13 of 20 Mahavir Singh Vs Smt. Sudesh Kumari & Ors ground floor which earlier was made of wood and had now been changed to iron. The defendant has himself acknowledged the fact that it is not possible to approach the shaft through the common area and therefore, they had opened the door of their bathroom. If the site plan filed by the plaintiff is compared with the photographs placed on record by the Local Commissioner, it is observed that the entry which is from the lobby as per Ex.PW1/A is a common area which has been admitted by both the parties. On the right side of the lobby, there is an area leading to the shaft and just ahead of the lobby, a wooden partition has been placed (X1, X2) leading to area B which further leads to the lift area. It is alleged that the area just outside the lift which was supposed to be a common area, has been encroached upon by the defendants. This fact has been confirmed by the Local Commissioner in his report as well as from the photographs placed on record by the Local Commissioner. The wooden partition X1, X2 leads to area B which further leads to the area Mark A in the site plan which had been segregated for installation of the lift which as earlier discussed has four pillars which further go to show that the provision of the lift was always there at the time of construction of the property.
25. As per the report of Local Commissioner, another partition has been made by the defendants by way of a brick wall which is Y1, Y2. The boutique which was operating in the area just beside the stairs, has also been made in the common area as the said area leads to the shaft which is supposed to be a common space in the CS No.7152/2016 (Old No.65/15) Page 14 of 20 Mahavir Singh Vs Smt. Sudesh Kumari & Ors property and usable by all the inhabitants for the purpose of water, sewer and drainage pipes for all the floors.
26. Looking at the site plan, photographs as well as perusal of the report of the Local Commissioner shows that there has been an undoubted encroachment by the defendants in the common area Mark A which was for the purpose of the lift, Mark B which was the entry to the lift area and has now been separated by a wooden partition and has been covered in the hall which was in exclusive possession of the defendant and the entry to the shaft has been blocked by the boutique and the brick wall made by the defendant and through the boutique, the shaft area has also been exclusively taken over by the defendants. Therefore, from the above observations, the Court has come to the inference that portions Mark A, B and C were common area passages and the defendants have encroached upon the said passages. As the said areas are common areas, plaintiff is entitled to the relief of mandatory injunction and the "defendants are directed to remove the wooden partition and brick wall leading to the common area. The defendants are further directed to remove the boutique also from the passages leading to the shaft area so that the plaintiffs can have free access to the shaft area which is again a common area".
27. Issue no.10 which is with respect to the provision of the lift is also decided in favour of the plaintiff. It is held that the area point A shown in the site plan had been left for the CS No.7152/2016 (Old No.65/15) Page 15 of 20 Mahavir Singh Vs Smt. Sudesh Kumari & Ors provision of the lift and therefore , defendants are directed to remove the wooden partition X1, X2 leading to common area B which further leads to common area A which has been provided for installation of the lift. The defendants are also directed to assist in removal of the roof which has been constructed over common area A for the purpose of installation of the lift.
28. Plaintiff is also entitled to relief of declaration and permanent injunction whereby the defendants are restrained from exerting exclusive rights over the common area including area A which is left for installation of the lift, B which is common passage leading to the lift and C which is the shaft. As far as the submission of the defendant that the entry of the shaft may be made from the staircase is concerned, it is observed that from the site plan or from the photographs placed on record, no such space can be seen from the staircase for entry into the shaft. However, there is one opening from the backside as per the photographs annexed by the Local Commissioner but that too is from the area of the defendant and not from the common area. Therefore, issue no.8 is also decided in favour the plaintiff and defendants are further restrained from interfering with the plaintiff peaceful possession and enjoyment of the property including creating any obstacle in the free ingress and outgress of the common area in the suit property which is Mark A, B and C in the site plan.
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29. Hence, issue no. 3, 4, 6, 7, 8, 9 and 10 are decided in favour of the plaintiff and against the defendant and orders for mandatory injunction for removal of brick wall and wooden partition are passed against the defendants to provide access to the plaintiff to the common area A, B and C.
30. Now I shall decide the issue no.5 and 11 together which are as under :-
(5) Whether construction/renovation work was already being carried on by the plaintiff in the suit property at the time of filing the suit in portion of the plaintiff? OPD (11) Whether plaintiff is entitled to recover the amount as prayed for? OPP It has been stated by the plaintiff that due to the acts of the defendants, he had to undergo a lot mental harassment and agony and due to the encroachment of the defendants, the plaintiff is suffering a loss of monthly rental income of Rs.4 lacs. The plaintiff is inclined to give his property on rent and since the defendants are continuing their illegal acts, his property cannot be let out. The defendant has replied that the plaintiff was continuing with the construction work in the said property and the renovation work is still going on in the suit property owned by the plaintiff and when construction work is going on in a property, there is no question of letting it out on rent. The photographs annexed by the defendant Ex.PW1/D9 have been denied by the plaintiff in his cross examination and it is stated by him that the worker shown in the photographs is not doing the work on his floor. A photograph CS No.7152/2016 (Old No.65/15) Page 17 of 20 Mahavir Singh Vs Smt. Sudesh Kumari & Ors of a labour simiplicitar sitting near a staircase no way proves that the said photograph is of the suit property or the said portion belongs to the plaintiff. Further, the construction work being carried out in the suit property nowhere shows that the property is not capable of being rented out or the same is in a finished form and ready to be rented out. Therefore, the defendants have not been able to prove by the photographs that the renovation work was being carried out by the plaintiff at the time of filing of the suit.
31. At the same time, the plaintiff has not been able to prove the that there has been any loss of rent to him due to the act of the defendants or that he has not been able to rent out his property due to the encroachment by the defendants on the common areas. The plaintiff has also not brought on record any witness or any document to show that steps taken by him to let out his property on rent, for example an advertisement to let out or any witness to show that plaintiff was interested in renting out his property. He has also not proved the prevailing rate of rent in the area. Therefore, the issue no.11 has also not been proved by the plaintiff and he is not entitled for amount as prayed for, for loss of rent. Therefore, the issued no.11 stands decided against the plaintiff.
32. The issue no.1 and 2 shall be decided together which are as under:-
(1) Whether the suit does not disclose any cause of action against the answering defendants? OPD CS No.7152/2016 (Old No.65/15) Page 18 of 20 Mahavir Singh Vs Smt. Sudesh Kumari & Ors (2) Whether the plaintiff has suppressed material facts and has not approached the court with clean hands? OPD The defendant has not been able to prove that the suit does not disclose any cause of action. In fact, with the above discussion the court has come to the inference that the defendant has encroached upon common areas which were leading to the lift area and the shaft which are spaces for common use. Hence, the defendant has not been able to prove that no cause of action existed and issue no.1 stands decided against the defendants.
33. The defendant made an averment that the plaintiff had suppressed material facts and had not approached the court with clean hands and had not filed any NOC of the other co owner of the suit property i.e. owner of the first floor. The court suo moto made an effort to call the owner of the first floor of the suit property who was also a necessary party being a legal heir of late Sh. Chandgi Ram. An NOC was filed by Sh. Satyavrath Chaudhary and as per the NOC the owner of the first floor did not have any objection if the lift was installed in his floor and he gave consent for installation of lift and also filed the affidavit submitting that he had already alloted space for operation of the lift on the first floor. Therefore, the defendant cannot say that the plaintiff had not come to the court with clean hands and had suppressed material facts.
34. With the above discussion, all the issues stand decided.
35. Relief.
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36. In view aforesaid discussions, suit is decreed in favour of the plaintiff and defendants are hereby directed to remove the wooden partition and brick wall leading to the common area. The defendants are further directed to remove the boutique also from the passages leading to the shaft area so that the plaintiffs can have free access to the shaft area which is again a common area.
37. Defendants are further directed to remove the wooden partition X1, X2 leading to common area B which further leads to common area A which has been provided for installation of the lift. The defendants are also directed to assist in removal of the roof which has been constructed over common area A for the purpose of installation of the lift. Defendants are also restrained from interfering with the plaintiff peaceful possession and enjoyment of the property including creating any obstacle in the free ingress and outgress of the common area in the suit property which is Mark A, B and C in the site plan.
38. Decree sheet be prepared accordingly. The present decree is passed subject to filing of deficient court fees, if any. File be consigned to Record Room after due compliance.
Digitally signedPurva by Purva Sareen Date:
Announced in open court Sareen 2023.01.19
16:25:07 +0530
On 18 th January, 2023 (Purva Sareen)
Additional District Judge-01,
(South) Saket District Courts,
New Delhi
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Mahavir Singh Vs Smt. Sudesh Kumari & Ors